Preselection during the employment application process can potentially harm a federal agency if it gives an unfair advantage to help a particular applicant obtain a job over other candidates. The same goes for if an agency uses preselection to harm an applicant’s chances of getting a job. Both are considered prohibited personnel actions.
However, preselection can also be a valid non-discriminatory reason in EEO cases. This was upheld in Cory C. v. Social Security Administration. In this case, SSA announced a job opening for a supervisory management analyst position. Before the announcement was made, the position was promised to the eventual selectee (EV) by a second-line supervisor (S2), even though the EV wasn’t qualified for the job.
After the job announcement was made, the plaintiff was named to the best qualified list and was chosen to be interviewed by the selection panel. The plaintiff was ranked highest by the panelists, earned perfect scores, and was even recommended for the job. Despite all of this, the S2 requested the panel conduct additional reference checks.
While the panel conducted the requested reference checks, the S2 decided to investigate the applicant himself by interviewing a colleague who had worked with the plaintiff in the past. After hearing negative feedback from the former colleague, the S2 defied the panel’s recommendation and instead chose the EV. As a result, an EEO complaint was filed by the plaintiff that argued discrimination based on race and sex, and retaliation, resulted in him not getting the job.
The Commission ruled that there was prima facie discrimination because the EV didn’t belong to a protected class. Although the Commission said the reason for interviewing the plaintiff’s colleague lacked credibility, it ultimately decided that the selection lacked enough evidence to prove it was due to the plaintiff’s protected class. Because the preselection for the position occurred before the plaintiff applied for the job, it was a non-discriminatory obstacle that couldn’t be overcome.
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